Law of Wills, 2016A

Thereupon, petitioner asked the probate court for a determination that she was decedent's daughter
pursuant to Probate Code section 6454 and his sole heir, and that, as such, she was entitled to
distribution of his estate in its entirety. Objector, James C. Joseph, who was decedent's brother,
opposed.
After trial, the probate court determined that petitioner was not decedent's daughter or heir and,
hence, was not entitled to distribution of his estate in any part. It also revoked her letters of
administration of decedent's estate and removed her from office, concluding that, because she was
not an heir, she did not have a priority to serve over others, including objector.
In issuing orders to this effect, the probate court rendered a statement of decision, which included
the following:
Petitioner “was taken in by” decedent and his wife, who predeceased him, “and [was] raised
by them during the vast period of her minority, from age three on. [They] assisted her after
her minority by financing her efforts at San Jose State University and a local junior college.
[Decedent] ‘gave’ [her] away at her wedding. Certainly, the relationship between [decedent
and his wife and petitioner] satisfied the common law definition of ‘foster child,’ at least
during the minority and early adulthood of [petitioner], which to simplistically recite [its]
shorthand definition means one whose wellbeing is fostered by another person. For a
period, at the beginning of the relationship, and during her minority both [decedent and his
wife] would from time to time ask [petitioner's] natural parents if they ... could adopt [her].
Each such request was refused. After a while, but still during [her] minority [they]
discontinued asking.
“The real problem presented by this case is concluding the legislative meaning of, and the
purpose for, the requirement of Probate Code [section] 6454 when it requires that there be
‘... clear and convincing evidence that the foster parent ...would have adopted the [foster child] but
for a legal barrier.’ ([E]mphasis added[.]) Only two cases have surfaced which address
themselves to Probate Code [section] 6454 and they specifically address themselves to the
above mentioned [‘legal barrier’] requirement. They are: Estate of Stevenson (1991 [1992]) 11
Cal.App.4th [852, 14 Cal.Rptr.2d 250,] and Estate of Cleveland (1993) 17 Cal.App.4th [1700, 22
Cal.Rptr.2d 590]. These decisions are diametrically opposite one to the other.
“This court is impressed with the logic, analysis and scholarship of Cleveland .... The Cleveland
Court carefully analyzed the legislative history of this novel reform to the law of intestate
succession and concluded that [section] 6454's [‘legal barrier’] requirement means what it
says and says what it means. The public policy reasons for the enactment of [section] 6454
are satisfied by the Cleveland Court's decision and it appears to this court that Stevenson... goes
well beyond the intent of the legislation in [its] conclusion.
“Factually, in this case [decedent], the last to die of the [spouses], could have pursued an
adult adoption had he really wanted to establish a parent/child relationship with [petitioner].
Additionally, he could have written a will leaving his property to [her] had he intended for
her to succeed to his property. (He clearly was aware of the benefits of the use of a will, as
he used the services of the [l]awyer who now represents [petitioner] to write a will many
years before his death.) We cannot know what [decedent's] intentions were regarding the
devolution of his estate, except as he expressed them as to his predeceased spouse when he
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